Getting en

teen judges (abs. Lord Lyndhurst B. & Bolland B.) were unanimous that it was, not by breaking the residue of the pane, but by unfastening and opening the window. H. T. 1832. R. v. Robinson, MS. Bayley B. S. C. 1 M. 327.

Thieves, having an intent to rob, raised the hue and cry, and trance by fraud. brought the constable, to whom the owner opened the door; and when they came in they bound the constable and robbed the owner; held to be burglary. So if admission be gained under pretence of business; or if one take lodgings with a like felonious intent, and afterwards rob the landlord; or get possession of a dwelling-house by false affidavits without any colour of title, and then rifle the house; such entrance being gained by fraud, it will be burglarious. 2 East's P. C. 485.

By deluding a boy who had

the care of the house.

By threats.

Cornwall's case.

So in A. Hawkins's case, O. B. 1704. 2 East's P. C. 485. She was indicted for burglary; upon evidence it appeared that she was acquainted with the house, and knew that the family were in the country; and meeting with the boy who kept the key, she prevailed upon him to go with her to the house, by the promise of a pot of ale; the boy accordingly went with her, opened the door, and let her in; whereupon she sent the boy for the pot of ale, robbed the house, and went off; and this being in the night-time, it was adjudged that the prisoner was clearly guilty of burglary.

A breaking may be also in law, as where in consequence of violence commenced or threatened, in order to obtain entrance, the owner, either from apprehension of the force or with a view more effectually to repel it, opens the door, through which the robbers enter. But where no fraud or conspiracy is made use of, or violence commenced or threatened, in order to obtain an entrance, there must be an actual breach of some part of the house, though it need not be accompanied with any violence as to the manner of executing it. 2 East's P. C. 486.

Joshua Cornwall was indicted with another person for burglary; By conspiracy. and it appeared that he was a servant in the house, and in the night-time opened the street door and let in the other prisoner, and shewed him the sideboard, from whence the other prisoner took the plate after which Cornwall opened the door and let him out, but did not go out with him. Upon the trial it was doubted whether this were burglary in the servant, he not going out with the other. But afterwards, at a meeting of all the judges at Serjeant's Inn, they were unanimously of opinion that it was burglary in both, and not to be distinguished from the case where one watches at the street end whilst another goes in and commits the burglary, which hath often been ruled to be burglary in both; and accordingly Cornwall was executed. 2 Stra. 881. 19 Howell's St. Tri. 782. (n.) 4 Blac. Com. 227.

Breaking of inside door by a servant.

In the case of a servant opening a door of his master's house for a felonious purpose, without any conspiracy with others, it seems that the question whether such act amounts to a breaking must depend upon the point whether the door might have been opened by the servant in the course of his trust and employment. Thus, if a servant unlatch a door or turn a key in a door of his master's house and steal property out of the room, such opening of the door being within his trust, is not a breaking; but if a servant break open a door, either outward or inward (as a closet, study, or counting-house), such opening not being within his trust,

will amount to a breaking of the house. 2 Hale, 254, 255. 2 Russ.

10.

It is deemed an entry, when the thief breaketh the house, and Entry. his body, or any part thereof, as his foot, or his arm, is within any part of the house; or when he putteth a gun into a window which he hath broken (though the hand be not in), or into a hole of the house which he hath made, with intent to murder or kill; this is an entry and breaking of the house: but if he doth barely break the house, without any such entry at all, this is no burglary. 3 Inst. 64. 2 East's P. C. 490.

cient.

Rex v. Burr and Loosely, O. B. Feb. Sess. 1821, MS. The pri- Breaking alone soners were convicted before Best J. on an indictment charging without enterthem with burglariously breaking and entering the dwelling-house ing, not suffiof the prosecutor, with intent to steal, and stealing a flitch of bacon. The prisoner Loosely lodged in the prosecutor's house; the window-shutter was in the night-time opened from the inside of the house, the casement of the window was taken out, and the bacon was most probably put through the window to Burr, by whom it was carried away from the prosecutor's premises to Burr's house. It did not appear that Loosely went out of the house, or that Burr ever entered the house. His lordship inclined, at the trial, to think that the charge of burglary in the indictment was not supported by the evidence; but told the jury, that if they believed the facts, he advised them to convict, and that he would save the point for the twelve judges. Afterwards, on conferring with the judges of the court of K. B., he thought that there was no evidence of entering the house; and he, therefore, did not present the case to the twelve judges, but recommended a pardon, on condition of transportation for seven years, as the prisoners were properly convicted of a larceny.

Where the house was broken, but not entered, and the owner for fear threw out his money, it was holden to be no burglary, though clearly robbery, if taken in the presence of the owner. 2 East's P. C. 490.

In the case of George Gibbons, O. B. June, 1752, Fost. 107. 2 East's P. C. 490., who was indicted for burglary in the dwelling house of John Allan, it appeared in evidence that the prisoner in the night-time cut a hole in the window-shutters of the prosecutor's shop, which was part of his dwelling-house, and putting his hand through the hole took out watches and other things, which hung in the shop within his reach; but no entry was proved, otherwise than by putting his hand through the hole. This was held to be burglary, and the prisoner was convicted.

Where a glass window was broken, and the window opened with the hand, but the shutters in the inside were not broken; this was ruled to be burglary by Ward C. B., Powis and Tracy justices, and the Recorder; but they thought this the extremity of the law; and on a subsequent conference, Holt C. J. and Powell J. doubting, and inclining to another opinion, no judgment was given. Roberts's alias Chambers's case, 2 East's P. C. 487.

William Bailey and Robert Spencer were tried at the O. B. Jan. Sess. 1818, before Park J., for burglariously breaking and entering the dwelling-house of Zachariah Boote, esq. with intent to steal. The case was very clearly and satisfactorily proved, and the jury found the prisoners guilty; but a doubt arose whether the follow

Breaking a hole and putting hand through.

Hand introduced between broken window

and inner
shutters.

ing facts were sufficient to establish such an entering as is requisite to constitute the crime of burglary, there being no question as to the breaking, or intent to steal. The window of the kitchen was proved to be fastened in the following manner: The sash was drawn down, closed and fastened at the point of division by a latch in the inside. The inside shutters were closed and fastened by a bar. The pane in the upper part of the window was broken, in order to put in the hand to remove the latch: then the lower sash was thrown up to enable the prisoners to introduce a centre-bit to cut a hole in the shutters; and while they were engaged in this last operation, and before they had completed it, they were seized. The jury expressly found that the window was latched; and that the hand of one of the prisoners, both being present, was introduced in order to remove the latch, but the shutter never was actually opened. It was submitted to the judges, whether this introduction of the hand for the above purpose was such an entering as will constitute burglary, with the other necessary proof? At the O. B. May Sess. 1818, Bayley J. informed the prisoners, that the judges had considered their case, and were unanimously of opinion that there had been a sufficient entry of the house to constitute the offence of burglary. The hand of one of the prisoners, it appeared, had been introduced beyond the glass window, so as to reach the inward shutter, and the intervening space clearly was within the dwelling-house. Conviction right. R. v. Bailey and another, C. C. R. 341.

Where the prisoner broke the glass of a shop window with his hand with intent to steal, and part of his hand went within the shop, held to be a sufficient entry to constitute a burglary. H. T. 1823. R. v. Davis, C. C. R. 499.

Where the prisoners had thrown up a window, which had been left closed down, and had introduced a crowbar for the purpose of forcing the inside shutters, which were fastened, it was held not to be a sufficient entry, as there was no proof that any part of the prisoners' hand was within the window. E. T. 1828. R. v. Rust, R. & M. 184.

Thieves came by night to rob a house; the owner went out and struck one of them; another made a pass with a sword at persons he saw in the entry, and in so doing his hand was over the threshold; this was adjudged burglary by great advice. 2 East's P. C. 490.

So, putting a hook to steal, or a pistol to kill, within the door or window, though the hand be not in, is an entry. Ib.

To discharge a loaded gun into a house is a sufficient entry. (a) 1 Haw. c. 38. § 7.

pene

But where thieves bored a hole through the door with a centrebit, and part of the chips were found in the inside of the house, by which it was apparent that the end of the centre-bit had trated into the house, yet, as the instrument had not been introduced for the purpose of taking the property or committing any other felony, it was decided that this entry was not sufficient to constitute burglary. R. v. Hughes, 2 East's P. C. 491.

(a) It appears to have been ruled by Lord Ellenborough C. J. that a person discharging a gun from the outside of a field, into it, so as that the shot must have struck the soil, was guilty of breaking and entering the field. Vide Pickering v. Rudd, 4 Camph. 220. 1 Stark. Rep. 58. S. C.

If divers come in the night to do a burglary, and one of them break and enter, the rest of them standing to watch, at a distance, this is burglary in all. 3 Inst. 64.

And the entry need not be at the same time as the breaking, Breaking at provided both be in the night; therefore, if thieves break a hole one time, entry in the house one night, with intent to enter another night and at another. commit felony, which they execute accordingly, it is burglary.

1 Hale, 551.

Rez v. John Smith, C. C. R. 417. The prisoner was tried before Park J. at the O. B. April Sess. 1820, for burglariously breaking and entering the dwelling-house of Alfred Taylor, with intent to steal (no stealing was alleged, nor was there any in fact); but the learned judge left the fact of the intent fully to the jury, who upon the evidence, found that the burglary was with the intent to steal, and, therefore, returned a verdict of guilty. It appeared that in the night between Friday the 24th and Saturday the 25th March, the side door of the prosecutor's house, opening into a thoroughfare passage, had all the glass of it (nine by ten inches) taken out by the prisoner, with intent to enter, and which the prosecutor never repaired on the Saturday. The whole of Saturday and Sunday elapsed; and nothing more is heard of it. In the night between Sunday the 26th and Monday the 27th March, the prisoner entered at the same hole, but was taken on the premises, before any larceny was actually committed. The jury also found the breaking and entering both to have been noctanter, and that the breaking was not accidental (for the window part of the door was just high enough for a drunken man's head to have hit it), but that both breaking and entering were felonious. But a doubt arose whether one single act of felony (such as a burglary) could be made up by what takes place at two different days, at a distance from each other, and not merely separated by the natural accidents of the transaction itself, as if the felon began his operation at ten or eleven one night, and did not complete his entry till one or two o'clock in the morning, which would in law be the next day. Ld. Hale (1 P. C. 551.) says, " But if they break a hole in the house one night to the intent to enter another night, and commit felony, and accordingly they come at another night, and commit a felony through the hole they so made the night before, this seems to be burglary, for the breaking and entering were both noctanter, though not the same night; and it shall be supposed, that they brake and entered the night when they entered, for the breaking makes not the burglary till the entry." See also 2 East, P. C. 491.- This point was submitted for the opinion of the learned judges, who (in E. T. 1820) held this to be burglary, the breaking having been with intent afterwards to enter.

If A., being of full age, break open a house and then send in a young child trained for that purpose, who brings out property and delivers it to A., this will be burglary in A. 1 Hale, 555,

556. 2 Russ. 12.

The prisoner broke the glass of prosecutor's side door with

intent to enter at a future time on the Friday night, and actually entered on the Sunday night. The judges held this burglary, the breaking being with intent

afterwards to

enter.

Sending in a child to steal after the breaking. Mansion or

It was formerly held that not only the mansion or dwellinghouse itself, but also barns, stables, &c. though not under the same dwelling-house. roof, or joining contiguous, provided they were parcel thereof and within the curtilage, might be the subject of burglary: but now by 7 & 8 G. 4. c. 29. § 13., no building, although within the same 7 & 8 G. 4. curtilage with the dwelling-house and occupied therewith, shall be c. 29. § 13.

Lower room of a house not

with the rest.

deemed to be part of such dwelling-house for the purpose of burglary, or for any of the purposes aforesaid, unless there shall be a communication between such building and dwelling-house, either immediate or by means of a covered and inclosed passage leading from the one to the other.

On an indictment for burglary it appeared the prosecutor's house consisted of four rooms on the ground floor, one of which was a communicating wash-house; and of three bed-rooms up stairs, one of which was over the wash-house: the wash-house had no internal communication with the rest of the house, but it was under the same roof; the wash-house was the place broken into, and on case the question was, whether since 7 & 8 G. 3. c. 29. the wash-house was part of the dwelling-house: Seven judges held it was, five that it was not. R. v. Burrowes, Tr. T. 1830. MS. Bayley B. S. C. 1 M. 274. A church is considered a mansion in which burglary may be committed. 2 East's P. C. 487. 491.

Church.

Chambers.
Lodgings.

Where all the

dwelling-rooms

are let to lodgers.

Lodging-rooms over coach. house, &c.

Edifice must be permanent.

Dwelling

house divided.

Where there is an internal

communication.

So every house used for the dwelling and habitation of man. 3 Inst. 64.

A chamber in one of the inns of court, wherein a person usually lodges, or a lodging in part of a house, divided from the rest, and having a door of its own to the street, is properly called a mansionhouse. 1 Haw. c. 38. § 11. See 2 East's P. C. 499, 500. 505. Kel. 84.

Where the owner of the house let out the whole of it to different lodgers, except a cellar, which he occupied himself, and there was only one common outer door from the street; the prosecutor was one of the lodgers, and rented a shop and parlour: these were broken open in the night; and it was agreed that they were properly laid to be the mansion-house of the prosecutor. Rogers's case, 2 East's P. C. 506.

Where a lady's coachman rented two lodging-rooms, in which he slept, situate over the coach-house and stables, and which were rated by the parish as appurtenances thereto, and the entrance to which was down a passage out of a public mews, by stairs leading to the doors of the rooms, which were locked at night; it was contended that these were mere hay-lofts, but the judges held they were to be considered the dwelling-house of the prosecutor. Turner's case, 2 East's P. C. 492.

But no burglary can be committed by breaking into any inclosed ground, nor into any booth or tent, though the owner lodge therein, not being a permanent edifice. 2 East's P. C. 492. 2 Russ. 13. If part of a dwelling-house be let off to a tenant, with a separate entrance and no internal communication, and the tenant never sleeps there, breaking into it in the night will not be burglary. East's P. C. 507. 2 Russ. 14.

But aliter if there be any internal communication: Where a man let part of his house to his son, who used it as a shop, but never slept there, but a passage from the son's part led to the father's cellars, and they were open to the father's part of the house; the shop having been broken open, it was held to be burglary in the dwelling-house of the father, being under the same roof, part of the same house, and communicating internally. M. T. 1816. R. v. Sefton, C. C. R. 202. 2

Russ. 14.